Supreme Court of Florida
FLORIDA DEPARTMENT OF HEALTH,
[March 10, 2005]
We have for review the decision in Daniels v. State Department of Health,
868 So. 2d 551 (Fla. 3d DCA 2004), which certified conflict with the decision in
Albert v. Department of Health, 763 So. 2d 1130 (Fla. 4th DCA 1999), and Ann &
Jan Retirement Villa, Inc. v. Department of Health & Rehabilitative Services, 580
So. 2d 278 (Fla. 4th DCA 1991). We have jurisdiction. See art. V, § 3(b)(4), Fla.
Const. For the reasons which follow, we approve the decision of the Third District
Court of Appeal in Daniels, disapprove the decisions of the Fourth District Court
of Appeal in Albert and Ann & Jan Retirement Villa to the extent that they are
inconsistent with this opinion, and hold that the owner of a partnership or
corporation who prevails in an administrative proceeding initiated by a state
agency is not entitled to attorney’s fees and costs under the Florida Equal Access
to Justice Act when the complaint is filed against the owner in his or her individual
STATEMENT OF THE FACTS AND CASE
On September 20, 2001, the Florida Department of Health (Department)
issued an administrative complaint against Shari Daniels, alleging that she had
violated section 467.203(1)(f), Florida Statutes (2001).1 Daniels disputed the
allegations in the Department’s complaint and requested a formal administrative
hearing. On March 13, 2002, the Department referred the matter to the Division of
Administrative Hearings (DOAH). On June 28, 2002, the Department filed a
notice of voluntary dismissal. Consequently, an order was entered on July 3, 2002,
closing the Department’s file, canceling the scheduled final hearing, and closing
the DOAH file.
467.203 Disciplinary actions; penalties.—
(1) The following acts constitute grounds for denial of a license or
disciplinary action, as specified in s. 456.072(2):
(f) Engaging in unprofessional conduct, which includes, but is not
limited to, any departure from, or the failure to conform to, the standards of
practice of midwifery as established by the department, in which case actual
injury need not be established.
§ 467.203(1)(f), Fla. Stat. (2001).
On August 5, 2002, Daniels filed a petition for attorney’s fees under the
Florida Equal Access to Justice Act (FEAJA), section 57.111, Florida Statutes
(2002), seeking an award of attorney’s fees and costs. On August 26, 2002, the
Department filed a motion to dismiss Daniels’ petition. Daniels did not file a
response to the Department’s motion to dismiss, and on November 20, 2002, the
administrative law judge entered an order granting the motion to dismiss with
leave to file an amended petition on or before December 6, 2002. The motion to
dismiss was granted because Daniels failed to allege sufficient facts to support her
argument that she was a “small business party” as defined in FEAJA.
On December 2, 2002, Daniels filed an amended petition for attorney’s fees
under FEAJA. In support of her assertion that she is a “small business party,”
Daniels stated that (1) at the time the underlying action was initiated, her net worth
(including both personal and business investments) did not exceed $2 million and
she did not employ more than twenty-five full-time employees; (2) she is the sole
shareholder of South Beach Maternity Associates, Inc., d/b/a Miami Beach
Maternity Center, a subchapter-S corporation;2 (3) she and South Beach Maternity
A subchapter-S corporation, or simply S corporation, is one which does not have
more than 75 shareholders (all of whom are persons and not entities), which does
not have a resident alien as a shareholder, and which does not have more than one
class of stock. 26 U.S.C. § 1361(b)(1) (2000). Shareholders of S corporations
receive pass-through taxation (i.e., the S corporation’s income is passed through to
its shareholders so that they are taxed at the end of the year but the S corporation is
not), unlike C corporations which have double taxation (i.e., the C corporation is
are one and the same entity; and (4) the administrative action stemmed solely from
her treatment of a patient of South Beach Maternity. On December 11, 2002, the
Department filed a motion to dismiss, and Daniels filed a response to the motion.
Nonetheless, on January 2, 2003, the judge entered an order granting the motion to
dismiss the amended petition for attorney’s fees and providing a date for the filing
of the proposed final order. The administrative law judge granted the motion,
finding that Daniels had failed to allege sufficient facts to support her argument
that she was a “small business party” within the definition of FEAJA.
In the final order, the administrative law judge, relying on Florida Real
Estate Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994), stated that the
action in the underlying case was brought against Daniels individually and not her
corporation. Thus, he found that allowing her to seek FEAJA fees for acts which
she allegedly committed in her individual capacity as if she were a corporation
would ignore the corporate form. He also distinguished the instant case from the
two cases upon which Daniels relied, Ann & Jan Retirement Villa and Albert.
Lastly, he expressly noted that Daniels was not operating as a professional service
corporation. On appeal, the Third District affirmed, finding that the administrative
complaint was filed against Daniels individually rather than against her corporation
taxed on its income and its shareholders are taxed on the income which they
receive through dividends). Black’s Law Dictionary 341, 344 (7th ed. 1999).
and that on this basis, the denial of FEAJA fees was proper. See Daniels, 868 So.
2d at 551-52. We granted review based on certified conflict of decisions.
The key issue in this case is whether Daniels, the sole owner of a
subchapter-S corporation, qualifies as a small business party as defined in section
57.111, Florida Statutes (2002), when suit is brought against her individually and
not against the corporation. If she qualifies as a small business party, she is
entitled to fees and costs under FEAJA. The question before us is a matter of
statutory interpretation and is a question of law subject to de novo review. See
State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001). In construing a statute
we are to give effect to the Legislature's intent. See State v. J.M., 824 So. 2d 105,
109 (Fla. 2002). In attempting to discern legislative intent, we first look to the
actual language used in the statute. Joshua v. City of Gainesville, 768 So. 2d 432,
435 (Fla. 2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289
(Fla. 2003). When the statute is clear and unambiguous, courts will not look
behind the statute's plain language for legislative intent or resort to rules of
statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v.
Jacobs, 820 So. 2d 297, 303 (Fla. 2002). In such instance, the statute's plain and
ordinary meaning must control, unless this leads to an unreasonable result or a
result clearly contrary to legislative intent. See State v. Burris, 875 So. 2d 408,
410 (Fla. 2004). When the statutory language is clear, “courts have no occasion to
resort to rules of construction--they must read the statute as written, for to do
otherwise would constitute an abrogation of legislative power.” Nicoll v. Baker,
668 So. 2d 989, 990-91 (Fla. 1996). Because statutes providing for attorney’s fees
are in abrogation of the common law, such statutes are to be strictly construed. See
Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 223 (Fla. 2003).
The statute at issue in this case, section 57.111, Florida Statutes (2002), is
clear and unambiguous. It provides in relevant part:
57.111 Civil actions and administrative proceedings
initiated by state agencies; attorneys’ fees and costs.—
(1) This section may be cited as the “Florida Equal Access to
(2) The Legislature finds that certain persons may be deterred from
seeking review of, or defending against, unreasonable governmental
action because of the expense of civil actions and administrative
proceedings. Because of the greater resources of the state, the
standard for an award of attorney’s fees and costs against the state
should be different from the standard for an award against a private
litigant. The purpose of this section is to diminish the deterrent effect
of seeking review of, or defending against, governmental action by
providing in certain situations an award of attorney’s fees and costs
against the state.
(3) As used in this section:
(a) The term “attorney’s fees and costs” means the reasonable and
necessary attorney’s fees and costs incurred for all preparations,
motions, hearings, trials, and appeals in a proceeding.
(b) The term “initiated by a state agency” means that the state
Filed a request for an administrative hearing pursuant to
chapter 120; . . . .
(c) A small business party is a “prevailing small business party”
3. The state agency has sought a voluntary dismissal of its
(d) The term “small business party” means:
1.a. A sole proprietor of an unincorporated business, including a
professional practice, whose principal office is in this state, who is
domiciled in this state, and whose business or professional practice
has, at the time the action is initiated by a state agency, not more than
25 full-time employees or a net worth of not more than $2 million,
including both personal and business investments; or
b. A partnership or corporation, including a professional practice,
which has its principal office in this state and has at the time the
action is initiated by a state agency not more than 25 full-time
employees or a net worth of not more than $2 million; . . . .
(4) . . . .
(d) The court, or the administrative law judge in the case of a
proceeding under chapter 120, shall promptly conduct an evidentiary
hearing on the application for an award of attorney’s fees and shall
issue a judgment, or a final order in the case of an administrative law
judge. The final order of an administrative law judge is reviewable in
accordance with the provisions of s. 120.68. If the court affirms the
award of attorney’s fees and costs in whole or in part, it may, in its
discretion, award additional attorney’s fees and costs for the appeal.
§ 57.111, Fla. Stat. (2002) (emphasis added). In essence, a person who has
requested review of a state agency action and is the prevailing party in the matter is
entitled to attorney’s fees and costs if the person fits the statutory criteria of a small
The Department’s complaint was filed against Daniels individually. Thus
the question before this Court is whether she is included within the statutory
definition of a “small business party”? Section 57.111(3)(d)(1)(a) defines a small
business party as an entity that is a sole proprietor of an unincorporated business.
Daniels does not fit this definition because she practices under South Beach
Maternity, a subchapter-S corporation, and not as a sole proprietor. Additionally,
she is not included within section 57.111(3)(d)(1)(b) because the agency filed a
complaint against her as an individual and not against her corporation, South
Beach Maternity. If the complaint had been filed against South Beach Maternity,
fees might have been awarded under FEAJA.
A number of Florida cases have interpreted FEAJA on this issue consistent
with the result reached by the court in this case. In Shealy, a case virtually
identical to the instant matter, the First District Court of Appeal reversed an
attorney’s fees award made under FEAJA, finding that Shealy was not a small
business party as required by the statute. 647 So. 2d at 151. The Florida Real
Estate Commission denied Shealy’s application for a real estate license, which he
needed in order to work for a corporation wholly owned by him and his wife.
Shealy prevailed in an administrative proceeding, obtained the license, and sought
attorney’s fees from the Commission under FEAJA. In reversing the attorney’s
fees award, the First District said:
Section 57.111 authorizes an attorney’s fee for a qualifying
small business party, which must be a corporation, a partnership, or a
sole proprietor of an unincorporated business. See § 57.111(3)(d)1.a
and b, Fla.Stat. This does not encompass individual employees.
Department of Professional Regulation v. Toledo Realty, 549 So.2d
715 (Fla. 1st DCA 1989); Thompson v. Department of Health and
Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988).
Although the appellee and the corporation were found to be “one and
the same entity” based on the appellee’s control of the business, the
statute does not permit such disregard of the corporate form. The
appellee was not a small business party as defined by the statute, and
he thus should not have been awarded a section 57.111 attorney’s fee.
Id. at 152 (footnote omitted). The First District distinguished Shealy from Ann &
Jan Retirement Villa, stating that Ann & Jan Retirement Villa involved a situation
where the attorney’s fees were awarded to the corporation rather than to the
individual. See Shealy, 647 So. 2d at 152, n*.
The First District reached a similar conclusion in Department of Professional
Regulation v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989). In Toledo
Realty, the Department of Professional Regulation accepted a hearing officer’s
recommendation to dismiss a disciplinary complaint filed against Toledo Realty
and Ramiro Alfert. After this dismissal, Toledo Realty was awarded attorney’s
fees under FEAJA, but Alfert was not. In affirming the denial of attorney’s fees
for Alfert, the First District found that he was not a “small business party” as
defined by section 57.111(3)(d), since he was an employee of Toledo Realty.
In Thompson v. Department of Health & Rehabilitative Services, 533 So. 2d
840 (Fla. 1st DCA 1988), Thompson’s employment as director of a unit of
treatment and rehabilitative services at Florida State Hospital was terminated when
officials learned of his prior conviction for cocaine possession. At a formal
hearing, Thompson presented evidence that he was fully rehabilitated and
pardoned for his prior conviction. The Department then reinstated him, and he
thereafter filed a petition for attorney’s fees under FEAJA. The hearing officer
denied the petition, finding Thompson was not a “small business party” as defined
by section 57.111(3)(d), because the action was brought against him as an
individual. The First District affirmed and found that Thompson was a state
employee employed on a salaried basis with Florida State Hospital. However, the
First District recognized that there was some inconsistency in limiting the class of
people who can utilize FEAJA when measured against the act’s stated goal of
access to review of state agency action. The First District observed:
We recognize the apparent unfairness in permitting the limited
class of persons falling within the definition of “small business party”
to recover attorney fees and costs while excluding other persons such
as employees of private and governmental entities who are forced to
litigate with state agencies. However, Thompson makes no attack on
the constitutional validity of the statute; and whether to extend the
act’s protection beyond the limitations presently imposed by the
statute is a matter for legislative, not judicial, action.
Id. at 841. There have been, however, no legislative changes made to the statute.
Despite this line of cases limiting fees to the literal language of the statute,
other courts have found FEAJA fees awardable in individual cases. For example,
in Albert, one of the conflict cases, Albert was subject to a disciplinary proceeding
in which it was alleged that he had improperly refused to furnish copies of dental
records to a patient. 763 So. 2d at 1131. The suit was dismissed, and Albert
sought attorney’s fees under FEAJA. The administrative law judge denied the
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motion for fees and found that Albert was not a sole proprietor of an
unincorporated business under section 57.111(3)(d)(1)(a), Florida Statutes, because
he practiced as a professional association. The administrative law judge also found
that Albert could not qualify as a corporation or partnership under section
57.111(3)(d)(1)(b), Florida Statutes, because the complaint was filed against him
individually, not his professional association. In reversing the administrative law
judge’s denial of attorney’s fees to Albert under FEAJA, the Fourth District stated:
Although we must agree with the Department that a literal
interpretation of subsections (a) and (b) would not include the
appellant, this interpretation would lead to an absurd result which the
legislature could not have intended. Amente v. Newman, 653 So. 2d
1030 (Fla.1995). It is clear from the language of subsections (a) and
(b), which both contain the term “including a professional practice,”
that the legislature intended for the statute to apply to professionals,
regardless of whether they practice as sole proprietorships or
professional service corporations. What the legislature overlooked is
that the license to operate, which is generally the subject of the
administrative proceedings, is issued to the individual, not the
professional service corporation. The Department’s interpretation
would mean that professionals who have incorporated are not covered
by subsection (b), and would render subsection (b) meaningless.
Id. at 1131-32.
In Ann & Jan Retirement Villa, the Department had issued a license to
Sophie DeRuiter, who owned all the stock in an adult congregate living facility,
Ann & Jan Retirement Villa, Inc. When DeRuiter tried to renew the license for the
facility, the Department conducted a search through the Florida Protective Services
System Control Abuse Registry and discovered that an investigation by Aging and
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Adult Services indicated that DeRuiter had been a perpetrator of medical neglect.
Therefore, the Department denied DeRuiter’s request to renew the license for Ann
& Jan and also revoked her individual license until she could prove herself not
guilty of the medical neglect charge. Ann & Jan appealed the denial of the license
to the Division of Administrative Hearings. Ann & Jan filed a motion for
summary judgment on the issues of the Department’s revocation of DeRuiter’s
license and the denial of the license renewal. Thereafter, the Department filed a
notice of dismissal. DOAH conducted a hearing on entitlement to attorney’s fees
and costs under FEAJA and denied the request for attorney’s fees and costs. On
appeal, the Fourth District reversed, finding that Ann & Jan, the entity that brought
the appeal, and Sophie DeRuiter were “one and the same entity” and thus qualified
as a “small business party” as defined by section 57.111(3)(d)—a sole proprietor of
an unincorporated business. It is clear from the face of the opinion that the action
was styled in the name of the business entity and not in the name of the individual
In reviewing these cases, it is clear that Shealy is more analogous to the
instant case. As in Shealy, the administrative complaint in this instance was
brought against the individual owner as an employee of the corporation and not
against the corporation itself. Although Daniels and South Beach Maternity are
one and the same entity in that Daniels controls South Beach Maternity and owns
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100% of its stock, strict adherence to the language of section 57.111(3)(d) compels
us to reach the conclusion that Daniels is not a small business party, because she is
not a sole proprietor of an unincorporated business and because South Beach
Maternity was not a party to any of these proceedings. Like Shealy, the First
District’s decisions in Thompson and Toledo Realty espouse the principle that an
employee of a partnership or corporation is not entitled to recover attorney’s fees
and costs under FEAJA (even if that employee is also the owner) if the
proceedings initiated by the State were brought against the employee individually,
rather than the partnership or corporation.
The history of FEAJA is also instructive on this issue. Prior to the creation
of FEAJA, the federal Equal Access to Justice Act, 5 U.S.C § 504 (2000), was
passed on October 21, 1980. While it was amended twice, the portion of that
federal statute central to the issue here has remained unchanged. It provides as
(B) “party” means a party, as defined in section 551(3) of this
title, who is (i) an individual whose net worth did not exceed
$2,000,000 at the time the adversary adjudication was initiated, or (ii)
any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization, the
net worth of which did not exceed $7,000,000 at the time the
adversary adjudication was initiated, and which had not more than
500 employees at the time the adversary adjudication was initiated .
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5 U.S.C. § 504(b)(1)(B) (emphasis added). Thus, the federal act specifically
provides for the award of fees to qualifying individuals.
After its federal counterpart was created, the Florida Legislature enacted
section 57.111, Florida Statutes, in 1984.3 The portion of FEAJA which is at issue
here, section 57.111(3)(d), was included in the original 1984 act and remains
unchanged. It does not include individuals within the definition of “small business
party” as its federal counterpart does in 5 U.S.C. § 504(b)(1)(B)(i). Thus, it can be
inferred that the Legislature did not intend to permit individual owners of
partnerships or corporations, such as Daniels, to recover attorney’s fees and costs
under FEAJA when the State initiates an administrative complaint against them
individually. As the First District in Thompson appropriately commented,
“[W]hether to extend the act’s protection beyond the limitations presently imposed
by the statute is a matter for legislative, not judicial, action.” 533 So. 2d at 841.
We decline to look beyond the plain language of the statute, and leave expansion
of the rights conferred under the statute to the Legislature.
Because the Department’s complaint was filed against Daniels individually,
she does not fall within either definition of a “small business party” contained in
section 57.111(3)(d)1. Therefore, she is not entitled to attorney’s fees and costs
See ch. 84-78, Laws of Fla.
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under the Florida Equal Access to Justice Act. We approve the decision of the
Third District in this case and disapprove the Fourth District decisions in Albert
and Ann & Jan Retirement Villa to the extent that they are inconsistent with this
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, CANTERO, and BELL, JJ., concur.
LEWIS, J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Third District - Case No. 3D03-706
Colleen M. Greene and Max R. Price of the Law Offices of Max R. Price, Miami,
Pamela H. Page, Section Head, Appellate Section and Dana Baird, Assistant
General Counsel, Florida Department of Health Bureau of Health Care,
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